Are liberals beginning to embrace the Constitution?
By: David Bossie February 21, 2012 09:44 PM EDT

In recent days many radical liberals have changed their tune regarding campaign finance laws. The drumbeat of the past two years has begun to shift. President Obama is no longer assaulting Citizens United or Super PACs, instead he is encouraging his supporters to open their check books. Former New York Gov. Eliot Spitzer now believes that “I think as a First Amendment principle, Citizens United was correct.” Even veteran Washington Post and Newsweek scribe, Robert J. Samuelson has declared “Except for contribution disclosures, campaign finance laws should be scrapped.”

Unsurprisingly, the only ones still trying to rein in the First Amendment are those interested in silencing all other voices but their own. Whether they be incumbent elected officials (for example, a certain liberal congressman from Maryland or justices on the Montana Supreme Court), or media corporations like the Washington Post seeking a monopoly on political speech. Why is their speech more worthy of protection than others?

Two prolific fundraisers, Sen. Charles Schumer (D-N.Y.) and Rep. Chris Van Hollen (D-Md.) led the fight to curtail independent speech with their 2010 legislation, the Democracy is Strengthened by Casting Light on Spending in Elections (“DISCLOSE Act”). According to Schumer and Van Hollen’s latest FEC disclosures they have $10 million and $1.9 million cash on hand respectively. They have the means to engage in political speech, but would rather their opponents be left without sufficient resources to respond.

The 2010 DISCLOSE Act, with carve outs for labor unions and the nation’s largest special interest groups, failed to pass the Senate. Congressman Van Hollen has gone back to the drawing board and again released a DISCLOSE Act - same acronym, new title, same attempt to chill political speech. This Disclosure of Information on Spending on Campaigns Leads to Open and Secure Elections Act of 2012 is bound to meet the same fate as its predecessor.

The Washington Post Editorial Board supports Rep. Van Hollen’s latest DISCLOSE Act. The Washington Post is a media corporation that is free to engage in political speech. While the editorial Bboard characterizes the legislation as a good governance measure, it’s clear their liberal biases are underlying their position. For example they site “the money spigot flowing with full force in the Republican primary” as the reason for the latest round of speech chilling legislation.

It bears noting that over the years the Washington Post has shifted its focus from that of a media corporation to a for-profit educational institution. It’s investment in Kaplan educational programs has grown so large that in 2009 their revenue from for-profit educational activities (58%) eclipsed their media revenue (41%). If the Washington Post is in fact an educational institution that happens to produce a newspaper does the editorial board feel the Washington Post’s speech still warrants protection?

Schumer, Van Hollen, and the Washington Post have been upfront regarding their war on the First Amendment. It’s clear they come from the view point of “Free speech for me, but not for thee.” Their liberal platforms allow them to throw the Constitution and Bill of Rights by the wayside to further their own ideological agendas. It’s disturbing to see politicians do this, but it’s far more disturbing to see members of the judiciary do the same.

The Montana Supreme Court, whose members are subject to popular election, has disregarded the Supreme Court’s decision in Citizens United. In American Tradition Partnership, Inc. v. Attorney General of the State of Montana, the Montana Supreme Court brazenly upheld a state ban on corporate independent expenditures. As you’ll recall a federal ban on corporate independent expenditures was at issue in Citizens United. The United States Supreme Court found that the First Amendment protected political speech, and it could not be curtailed for anything short of quid-pro-quo corruption. It explicitly found that independent expenditures did not pose a risk of quid-pro-quo corruption.

The justices of the Montana Supreme Court ignored the clearest provisions of Citizens United and instead cobbled together a bizarre reading of the case that would permit them to uphold Montana’s burdens on constitutionally protected political speech.

American Tradition Partnership filed an Application to Stay the Montana Supreme Court Decision with the Supreme Court, which was granted by the Supreme Court last week. The Montana Supreme Court cannot disregard the Constitution, Bill of Rights, or clearly applicable Supreme Court precedent.

As noted in American Tradition Partnership’s Application to Stay, at least one justice was cognizant of the Montana Supreme Court’s reckless disregard for the law. Justice Nelson took his fellow justices to task for shirking their judicial responsibilities:

“[W]hen the highest court in the country has spoken clearly on a matter of federal constitutional law, as it did in Citizens United, … this Court … is not at liberty to disregard or parse that decision in order to uphold a state law that, while politically popular, is clearly at odds with the Supreme Court’s decision. This is the rule of law and is part and parcel of every judge’s and justice’s oath of office to “support, protect and defend the constitution of the United States.” In my view, this Court’s decision today fails to do so.”

Justice Nelson was right to note that:

“The Supreme Court in Citizens United … rejected several asserted governmental interests; and this Court has now come along, retrieved those interests from the garbage can, dusted them off, slapped a ‘Made in Montana’ sticker on them, and held them up as grounds for sustaining a patently unconstitutional state statute.”

The Supreme Court was clear in deciding Citizens United. The First Amendment protects the right to political speech, regardless of the speaker. While some on the Left have thrown in the towel and admitted that the Constitution trumps their policy preferences, we must still remain vigilant and rebuff any and all attempts to curtail political speech whether they come from incumbent politicians, liberal media corporations, or elected judges.

David N. Bossie is president of Citizens United and Citizens United Foundation.